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Pertile v. General Motors, LLC

United States District Court, D. Colorado

August 31, 2017

GENERAL MOTORS, LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, KELSEY-HAYES COMPANY, a Delaware corporation, Defendants.



         This case arises out of a rollover accident in which Plaintiff Daniel Pertile was the front seat passenger in a Chevrolet Silverado pickup truck. (See generally ECF No. 31.) Mr. Pertile was badly injured, and in this action Plaintiffs bring suit against General Motors, LLC (“GM”), TRW Vehicle Safety Systems, Inc., and Kelsey-Hayes Company, advancing claims for strict liability, negligence, breach of warranties, violation of the Colorado Consumer Protection Act, and loss of consortium.

         By Order entered May 8, 2017 (ECF No. 291 (the “Order”)), U.S. Magistrate Judge Nina Y. Wang granted in part Plaintiff's Motion to Compel Production of Facts or Data Considered by General Motors, LLC's Expert Huizhen Lu (ECF No. 177 (public filing) & ECF No. 178 (restricted filing) (“Plaintiffs' Motion”).)[1] This matter is now before the Court on Defendant General Motors LLC's Rule 72(a) Objection (ECF No. 303 (GM's “Objection”) to that Order, as well as to Judge Wang's subsequent and related Minute Order (ECF No. 302). For the reasons set forth below, GM's Objections are overruled.


         “Discovery is a nondispositive matter . . . .” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). When reviewing an objection to a magistrate judge's non-dispositive ruling, the Court must adopt the ruling unless it finds that the ruling is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); Hutchinson, 105 F.3d at 566; Ariza v. U.S. West Commc'ns, Inc., 167 F.R.D. 131, 133 (D. Colo. 1996).

         The clearly erroneous standard “requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). The “contrary to law” standard permits “plenary review as to matters of law, ” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3069 (2d ed., Apr. 2015 update), but the Court will set aside a Magistrate Judge's order only if he or she applied the wrong legal standard or applied the appropriate legal standard incorrectly, see Wyoming v. U.S. Dep't of Agric., 239 F.Supp.2d 1219, 1236 (D. Wyo. 2002). In short, “[b]ecause a magistrate judge is afforded broad discretion in the resolution of non-dispositive discovery disputes, the court will overrule the magistrate judge's determination only if his discretion is abused.” Ariza, 167 F.R.D. at 133.


         A. FEA Data and the Parties' Experts

         Plaintiffs' counsel has summarized that Plaintiffs' “main claim” against GM in this vehicle rollover case is that “the truck . . . . had a roof that was too weak.” (ECF No. 87-2 at 3.) Plaintiffs therefore seek to prove both “that the roof was too weak, ” and “that there is an alternative design available that would have strengthened the roof and helped prevent the [in]jury.” (Id. at 4; see also ECF No. 254 at 8 (“Plaintiffs contend the roof and its supporting structures was weak and failed during the rollover”).)[2]Accordingly, both sides have disclosed mechanical engineering experts to testify regarding the strength of the roof and potential alternate designs.

         Plaintiff disclosed Dr. Andreas Vlahinos, Ph.D., whose opinions, among others, include: (1) that “[t]he production/baseline Chevrolet Silverado crew cab roof structure has a rear pillar strength that is lower than the strength to weight ratio defined in FMVSS 216”;[3] (2) that “the “crew cab pillars buckle significantly during roof loading”; and, (3) that the “crew cab roof structure can be significantly improved utilizing simple design changes, ” leading to a “modified roof structure [that] deforms significantly less.” (See ECF No. 202-3 at 16.)

         GM disclosed Ms. Huizhen Lu, M.S.M.E., a senior engineering group manager for GM. (See generally ECF No.177-2; ECF No. 241-2.) Ms. Lu's initial report states that “[t]he roof structure of the vehicle was evaluated in tests that subjected the design to various collision speeds, impact directions and loading directions” (ECF No. 177-2 at 4); and, that the design team for the GMT900 truck series “set a safety goal of testing and meeting the FMVSS 216 roof strength performance * * * even though the GMT900 pickup truck was not required to comply with FMVSS 216.” (ECF No. 177-2 at 5.)

         In addition, Ms. Lu opined, in part based upon her “review of the technical reports and engineering documents, ” which are further addressed below, that “it is my opinion that the 2011 Chevrolet Silverado 2500HD crew cab pickup truck met and exceeded the applicable FMVSS requirements, ” that “[t]he roof structure . . . exceeded the [strength-to-weight ratio] requirement, ” and that “[t]he processes and evaluations that GM undertook in designing and assembly of the GMT900 pickup trucks were reasonable and appropriate.” (ECF No. 177-2 at 9.)

         In reaching their respective opinions (including Ms. Lu's rebuttal opinions) both Dr. Vlahinos and Ms. Lu made use, in different ways, of Finite Element Modeling or Finite Element Analysis (“FEM”/”FEA”) engineering techniques. The Court has previously summarized that “Finite element analysis (‘FEA') refers to ‘a computer modeling technology used to create a mathematical simulation of three dimensional, virtual representation of a vehicle, component or system subjected to prescribed load conditions.” (ECF No. 121 at 3 (quoting Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1169-70 (Fed. Cir. 2008)).[4] Ms. Lu has described GM's use of FEA as follows: “GM uses computer modeling technology to create a mathematical simulation of a three dimensional, virtual representation of a vehicle, system or component that is subjected to prescribed load conditions. These simulations attempt to predict aspects of the behavior of a system by creating and running an approximate, mathematical model of it.” (ECF No. 96-1 ¶ 6.)

         Here, as disclosed in his written report and discussed in more detail below, Dr. Vlahinos considered re-creating an FEM of the subject vehicle from electronic files and data produced by GM (other than the FEA files at issue here), but he concluded that it would be too difficult to do so. (See ECF No. 202-3 at 3.) Instead, he made use of an FEM available through George Washington University's National Crash Analysis Center (“NCAC”), which he explains “was reverse engineered from a production 2007 Chevrolet Silverado 1500 2WD crew cab short bed pickup.” (ECF No. 202-3 at 3.) Dr. Vlahinos explained that “[a]lthough there are some differences in year and configuration, ” “the cab portion of the model is identical, ” and he concluded the NCAC FEM was suitable for his analysis in this case. (Id. at 3, 4.) He therefore used the NCAC FEM to simulate different load-bearing situations and the effects of proposed design modifications. He then compared the simulated levels of roof deformation between the “baseline” model and his modified model. (See Id. at 5-16.)

         Ms. Lu's initial report did not engage in comparable FEA modeling of her own. However, she disclosed that “[i]n a FMVSS 216 evaluation conducted by GM CAE[5]engineering group in July of 2005, a pre-production 2007 GMT900 crew cab pickup truck was tested according to the FMVSS 216 test protocol[.] It had achieved a peak load resistance of 11, 897 lbs. * * * the GMT900 crew cab pickup has a strong roof.” (Id. at 5.) Dr. Lu then reports, based on this simulation, that “[t]he roof strength performance of the GMT900 crew cab pickup truck exceeded the requirements of FMVSS 216 * * * Relating this test performance to our subject vehicle, the peak load resistence obtained on the roof structure is approximately 1.8 times the subject 2011 Chevrolet Silverado 2500 HD crew cab pickup truck's shipping weight.” (ECF No. 177-2 at 5-6.)[6] In addition, Ms. Lu's rebuttal report criticized Dr. Vlahinos's modeling, including for having used the NCAC baseline model rather than building an FEM from GM's data. (ECF No. 241-2 at 2.) She went on to provide additional modified FEA modeling based off of Dr. Vlahinos's “baseline model.” (Id. at 4-11.)

         B. Prior Related Discovery Disputes

         Earlier in this litigation, Plaintiffs sought to compel production by GM of files and data reflecting GM's FEA modeling of the 2011 model Chevrolet Silverado 2500 HD crew cab pickup (which is part of the GMT900 Series of vehicles and sometimes referred to as such in the record). (See ECF No. 87.)[7] After briefing and a hearing, Judge Wang denied Plaintiffs' Motion to Compel in an Order dated March 17, 2016. (ECF No. 121 (the “March 17 Order”).) She reasoned, in part, that “[e]ven accepting that the FEA Models are relevant, ” nevertheless “Plaintiffs [had] not established that they are necessary in this action.” (Id. at 10.) Judge Wang reached this conclusion in part because of the other computer design materials that GM had produced to Plaintiffs (see id.), and in part because Judge Wang relied on GM's representations that the FEA models in its possession did not reflect the final design of the vehicle at issue in this case (see ECF No. 291 at 3). Plaintiffs objected to the March 17 Order under Federal Rule of Civil Procedure 72(a), and this Court affirmed. (See ECF No. 153.)

         In addition, as summarized by Judge Wang, subsequent to the March 17 Order, the parties raised numerous discovery disputes “including but not limited to whether the other electronic information produced by GM regarding the vehicle design was sufficient and whether the Parties had appropriately produced the electronic data upon which their respective experts had relied.” (ECF No. 291 at 4 (citing ECF Nos. 139, 142, 164, 285).) Most relevant here, Judge Wang compelled Dr. Vlahinos to provide Defendants with the electronic inputs and outputs associated with his FEA Model, and also authorized Plaintiffs to “file a formal motion related to the FEM model data if they can establish that Defendants' experts relied upon GM's FEM data that was [sic] withheld to render their expert opinions.” (ECF No. 164.)

         C. Present Motion to Compel and Judge Wang's Order

         Plaintiffs then filed the Motion to Compel now under review. As summarized in Judge Wang's Order, Plaintiffs argued that deposition testimony of Ms. Lu and another GM employee had revealed that GM was, in fact, in possession of three FEMs reflecting the final production level design of the truck in which Mr. Pertile was injured, and that Ms. Lu had considered GM's FEM data in forming her opinions. Plaintiffs therefore sought an Order to “compel GM to produce all of its Finite Element Modeling data, ” based on Federal Rule of Civil Procedure 26(b)(2)'s requirement that materials “considered” by Ms. Lu must be disclosed and produced. (See ECF No. 178 at 3, 12.)

         GM objected, arguing, in part, that Ms. Lu “neither used nor relied on” GM's FEM models, and that “to the extent she offered any testimony about the strength of the vehicle's roof, it was based on the report of the analysis done in development of the vehicle (the model for which no longer exists), and on a physical test conducted that confirms the strength of the roof design, ” but not on the FEA modeling underlying the 2005 report. (ECF No. 208 at 2 (emphasis in original); ECF No. 208-1 ¶¶ 6-7.)

         In the Order now under review, Judge Wang granted Plaintiff's Motion only in part, ordering that GM must “disclose to Plaintiffs' expert, Dr. Vlahinos, and Plaintiffs' counsel one of three existing FEA Models of Plaintiffs' selection, for the limited purposes of allowing Plaintiffs to defend the validity of their own FEA Model and to properly cross-examine Ms. Lu regarding her opinions, but not to offer new theories of alternative design or in support of other issues.” (ECF No. 291 at 19-20.)

         Judge Wang's Order reasoned that although “perhaps Ms. Lu never ‘accessed' or ‘looked at' [these] particular FEA Models, ” nevertheless, “she unequivocally relied on” GM's 2005 CAE test modeling of a 2007 GMT900 crew cab pickup truck to evaluate compliance with the FMVSS 216 standard. (ECF No. 291 at 16; see also ECF No. 177-2 at 5-6.) Interpreting the meaning of what an expert has “considered” for purposes of Rule 26(a)(2)(B), the Order held this “means something broader than ‘relied upon, ' but something less than material simply in the background knowledge of the expert.” (ECF No. 291 at 18 (citing Allstate Ins. Co. v. Electrolux Home Prods., Inc., 840 F.Supp.2d 1072, 1080 (N.D. Ill. 2012).) And, “given the importance of FEA to the expert opinions, ” the Order “decline[d] to consider GM's FEA Models as merely part of Ms. Lu's background knowledge.” (Id.) Given those considerations and having reviewed the substantial record surrounding the parties' related disputes, Judge Wang reasoned as follows:

Perhaps the FEA Models, which yielded the reports upon which Ms. Lu relied to state that the roof exceeds the FMVSS 216 standard, do not consider ‘floor loading conditions, in terms of loading location, pitching angle, size of the platen and excessive platen travel allowed, ' as recognized or utilized by the NHTSA or the automobile industry; or perhaps the difference between what Dr. Vlahinos used and GM used is negligible. Or perhaps GM's modeling is, in fact, superior to Dr. Vlahinos's in substance and execution. But it strikes this court that Plaintiffs will never know unless they receive input and output electronic files of at least one FEA Model.

(ECF No. 291 at 18.)

         D. Disputed Method of Production

         Judge Wang's Order further directed the parties to confer regarding the method of GM's disclosure, and to “present any and all disputes” regarding the manner of disclosure to the Court no later than May 22, 2017, with disclosure of the FEA Model to occur no later than May 29, 2017. (Id. at 20.)[8] Likely to no one's great surprise, the parties were unable to agree on a method of production. GM proposed a protocol under which GM's eDiscovery team would perform a forensic collection of the FEA Model selected by Plaintiffs for production (the “Police” Model, which GM also refers to as “Model 3”), and would provide a partially-encrypted copy of its model for on-site inspection by Dr. Vlahinos and Plaintiffs' counsel, to be conducted in a monitored room at a secure location at GM's headquarters in Detroit, with only limited ability to generate images, animation, and/or text output files (in JPEG, AVI, and/or PDF formats) of the model's graphical display of inputs, graphical display of “the pre-generated output file, ” and/or of the ASCII text input file for later production. (See ECF No. 303-3 ¶¶ A., F.-H.) GM's protocol also provided that “[a]n electronic copy of the output files in .D3Plot format” would be provided ...

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